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Court of Criminal Appeal 8 April 2016

R v IL

[2016] NSWCCA 51

HomicideDrugs
JURISDICTION APPEAL JOINT CRIMINAL ENTERPRISE ERROR IN REASONING OF TRIAL JUDGE LIABILITY OF RESPONDENT NOT DERIVATIVE APPEAL

Citation: R v IL [2016] NSWCCA 51
Court: Court of Criminal Appeal, NSW
Date: 8 April 2016
Judge(s): Simpson JA; R A Hulme J; Bellew J

Background

In January 2013, a fire broke out in a bathroom of a house in Ryde where a gas cylinder was connected to a ring burner, on top of which sat a cooking pot containing a liquid substance alleged to be methylamphetamine or a precursor to it. A burning mattress was found atop the cooking pot. The respondent was present in the house with one Mr Lan, who sustained severe burns and later died from his injuries.

The respondent was charged with six counts, including manufacturing a large commercial quantity of methylamphetamine, the murder of Mr Lan (and alternatively his manslaughter), and unauthorised possession of various firearms. She pleaded not guilty to all counts.

At trial, the Crown relied on constructive murder, arguing that the death occurred in the course of a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. At the close of the Crown's case, the trial judge directed the jury to return verdicts of not guilty on the murder and manslaughter counts. The jury returned guilty verdicts on the remaining counts. The Director of Public Prosecutions appealed the directed acquittals under s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW).

  • Whether the Court of Criminal Appeal had jurisdiction to hear the appeal, given that s 107(2) limits Crown appeals against directed acquittals to grounds involving questions of law alone.
  • Whether the trial judge applied the correct test when directing acquittal on the constructive murder charge, specifically whether joint criminal enterprise principles apply to the foundational crime of drug manufacture.
  • Whether the trial judge applied the correct test when directing acquittal on the manslaughter charge, specifically whether the act causing death was unlawful and dangerous, and whether it fell within the scope of the respondent's participation in the enterprise.
  • Whether the act causing death (ignition of the ring burner) could be characterised as "malicious" within the meaning of s 18(2)(a) of the Crimes Act 1900 (NSW), and what effect, if any, the 2008 repeal of s 5 (which had defined "maliciously") had on that analysis.

Decision

Jurisdiction. Simpson JA, with R A Hulme J and Bellew J agreeing, held that both grounds of appeal raised questions of law alone, confirming the Court's jurisdiction to hear the appeal under s 107(2).

Constructive murder and joint criminal enterprise. The Court held that the trial judge erred in reasoning that, because the Crown could not identify which of the two participants ignited the ring burner, the respondent's liability depended on derivative responsibility for the other person's act. The respondent's liability was not derivative. The principles of joint criminal enterprise applied to the foundational crime of drug manufacture itself. The relevant question was whether the ignition of the ring burner fell within the scope of the joint enterprise or was contemplated by its participants. On the Crown's evidence, a prima facie case on that question existed, and the directed acquittal on the murder count was therefore in error.

Manslaughter. The Court reached a similar conclusion on the manslaughter charge. It was not necessary for the Crown to prove that the respondent and Mr Lan acted together in lighting the burner. It was sufficient to show that the ignition was an incident within the respondent's contemplation as a participant in the drug manufacturing offence. The act causing death was both unlawful and dangerous on the evidence, and there was a prima facie case that should have been left to the jury.

Meaning of "malicious" in s 18(2)(a). The respondent argued that no retrial on murder should be ordered because the act causing death could not, on any view, be characterised as "malicious" under s 18(2)(a). The Court rejected this submission. Although s 5 of the Crimes Act 1900 (which defined "maliciously") was repealed in 2008, Schedule 11, cl 65 of that Act preserves its operation for the purposes of murder charges under s 18. In any event, even construed without the assistance of s 5, the word "malicious" is broad enough to encompass a dangerous act undertaken in the course of an illegal drug manufacturing operation in inadequate premises. R A Hulme J added that cl 65 of Sch 11 unambiguously preserved the pre-repeal definition for s 18(2)(a) purposes.

Orders Made

  • The verdict of the Supreme Court of 2 December 2014 acquitting the respondent of the murder of Zhi Min Lan is quashed.
  • The verdict of the Supreme Court of 2 December 2014 acquitting the respondent of the manslaughter of Zhi Min Lan is quashed.
  • There be a new trial on the charges of murder and manslaughter.

Key Takeaways

  • Joint criminal enterprise principles apply to the foundational crime in a constructive murder charge. Where participants are engaged in a joint enterprise to commit a qualifying offence, a co-participant is liable for acts taken in pursuit of that enterprise, even if it cannot be shown who physically performed the act causing death.

  • A respondent's liability in this context is not derivative of another participant's act. The Court of Criminal Appeal confirmed that the relevant inquiry is whether the act causing death fell within the scope of the joint enterprise or was contemplated by the participants, not whether a specific act by an identified individual can be attributed to the accused.

  • On a manslaughter by unlawful and dangerous act charge, the threshold for a prima facie case in a joint enterprise context is met where the act causing death was within the respondent's contemplation as an incident of participating in the relevant criminal enterprise.

  • The repeal of s 5 of the Crimes Act 1900 (NSW) in 2008 did not remove the definition of "maliciously" from the law of murder. Schedule 11, cl 65 of the Crimes Act expressly preserves that definition for the purposes of s 18(2)(a).

  • In dismissing the respondent's argument against a murder retrial, the Court confirmed that "malicious" in s 18(2)(a) carries a broad meaning capable of encompassing dangerous acts undertaken in the course of an illegal enterprise, whether or not the statutory definition in the former s 5 applies.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107(2), 111(1)(b)
- Crimes Act 1900 (NSW), ss 4A, 5, 18, Sch 11 cl 65
- Crimes Amendment Act 2007 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 33(3)(a)

Cases
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- R v Sharah (1992) 30 NSWLR 292
- R v Demirian [1989] VR 97; 33 A Crim R 441 (distinguished)
- R v Coleman (1990) 19 NSWLR 467
- Mraz v The Queen [1955] HCA 59; 93 CLR 493
- R v Cunningham [1957] 2 QB 396
- R v Rushworth (1992) 95 Cr App R 252
- R v Safwan (1986) 8 NSWLR 97
- Clayton v The Queen [2006] HCA 58; 231 ALR 500
- Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
- Lavender v The Queen [2005] HCA 37; 222 CLR 67
- Gillard v The Queen [2003] HCA 64; 219 CLR 1
- Johns (TS) v The Queen [1980] HCA 3; 143 CLR 108